Posted on October 28, 2013

Non-powder guns, including BB, air and pellet guns, are inherently dangerous weapons that can inflict potentially severe or lethal injuries, particularly on children. According to one study, there are an estimated 3.2 million BB/pellet guns sold in the U.S. each year.1 Because non-powder guns expel projectiles (usually made of metal or hard plastic) through the force of air pressure, CO2 pressure, or spring action, they are different from firearms, which use gunpowder to generate energy to launch a projectile.

The Centers for Disease Control and Prevention have compiled national data on non-powder gun injuries which illustrate the inherent danger of these weapons. Between 2001 and 2011, non-powder guns injured 209,981 people nationwide, including 145,423 children age 19 or younger.2 In 2011 alone, 16,451 injuries – including 10,288 injuries to children age 19 and younger – resulted from the use of non-powder guns.3 According to the Consumer Product Safety Commission, BB guns and pellet rifles cause an average of four deaths per year.4

Because non-powder guns are designed to discharge projectiles, often at high speeds and with significant force, they should not be confused with toy guns. Both non-powder and toy guns, however, are often designed to appear almost indistinguishable from actual firearms, and may be mistaken for firearms by law enforcement or others.5 According to a New York Times investigation, “In recent years, dozens of police officers in Texas, California, Maryland, Florida and elsewhere have shot children and adults armed with what they believed were handguns but that were determined later to be BB guns or other types of air pistols.”6

Although there are no federal laws regulating their transfer, possession or use, non-powder guns are, unlike firearms, regulated by the Consumer Product Safety Commission (CPSC).7 Hence, non-powder guns are subject to generalized statutory limitations involving “substantial product hazard[s]” and articles that create “a substantial risk of injury to children.”8 The CPSC has not adopted specific mandatory regulations in this area, although the BB gun industry has adopted voluntary standards regarding non-powder guns.9

Federal law prevents states from prohibiting the sale of traditional BB or pellet guns, but explicitly allows states to prohibit the sale of these weapons to minors.10 Courts have interpreted these provisions to allow states to impose other regulations on the sale of traditional BB or pellet guns so long as the regulations fall short of prohibitions on sale.11

Additionally, federal law regulates the design of “look-alike firearms,” which include “toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles.”12 Every look-alike firearm must: (1) have a permanently-affixed blaze orange plug inserted in the firearm’s barrel; (2) have a similar marking on the exterior of the barrel; (3) be constructed entirely of transparent or translucent materials; or (4) be covered in certain bright colors.13 This federal law supersedes any state or local law which provide for markings or identification that are inconsistent with these requirements.14

The following jurisdictions regulate the transfer, possession or use of non-powder guns to some degree:

New Hampshire27
New Jersey28
New York29
North Carolina30
North Dakota31
Oklahoma32
Pennsylvania33
Rhode Island34
South Dakota35
Virginia36
Washington37
Wisconsin38

Description of State Laws Regulating Non-Powder Guns

Although additional regulations exist, non-powder gun regulations can generally be broken down into the following categories:

1. Defining All Non-Powder Guns as Firearms: New Jersey and Rhode Island take this approach, which generally ensures that all non-powder guns are kept out of the hands of children (absent direct adult supervision), and that felons and other individuals prohibited from possessing firearms are similarly barred from possessing non-powder guns.39

2. Treating Certain Non-Powder Guns as Firearms: Illinois and Michigan define high-power and/or large caliber non-powder guns as firearms. Illinois excludes from the definition of firearms non-powder guns of .18 caliber or less and non-powder guns with a muzzle velocity of less than 700 feet per second. Michigan excludes the following non-powder guns from the definition of firearms: smooth bore rifles or handguns designed and manufactured exclusively for propelling BB’s, not exceeding .177 caliber by gas or air .

3. Defining Non-Powder Guns as Dangerous Weapons: Connecticut, Delaware and North Dakota list some or all non-powder guns as dangerous weapons. However, dangerous weapon laws tend to be much less comprehensive than laws regulating firearms. In Connecticut, it is unlawful to carry a dangerous weapon, although various exceptions exist for BB guns.40 It is also unlawful to transport a dangerous weapon in a vehicle without a permit. Delaware prohibits possession of dangerous weapons, which are defined to include certain large caliber BB or air guns. North Dakota applies enhanced penalties for the improper use or possession of dangerous weapons.

4. Regulating Non-Powder Guns with Respect to Minors: Most states that regulate non-powder guns do so by prohibiting transfers to children or by prohibiting/limiting where the guns can be possessed or used, although the restrictions are often inapplicable with parental consent or adult supervision. Depending on the state, the term “child” is defined as being anywhere from under 18 years of age to under 12 years of age. A number of states also criminalize the use or possession of non-powder guns on or near school property, or provide that such use or possession shall be grounds for expulsion.

States that Impose Age Restrictions on Possession, Use, or Transfer of Non-Powder Guns
California
Delaware
District of Columbia
Florida
Illinois
Maine
Massachusetts
Michigan
Minnesota
New York
North Carolina
Pennsylvania
Virginia

States that Explicitly Regulate Possession of Non-Powder Guns on School Grounds
California
Colorado
Connecticut
Delaware
Minnesota
Mississippi
New Hampshire
New York
North Carolina
South Dakota
Virginia
Washington
Wisconsin

SELECTED LOCAL LAW

New York City

New York City prohibits the sale or possession of any air pistol or air rifle (defined as any instrument in which the propelling force is air or a spring) without an appropriate license. Persons who are licensed by the city to sell air pistols and rifles may do so only if they deliver the weapons to a location outside the city or the transferee has an air pistol or rifle license. However, the use of air pistols and rifles in connection with “an amusement licensed by the department of consumer affairs” or at a shooting range is also permitted. Air pistol or rifle dealers must keep records detailing the name and address of each purchaser and the place of delivery for each sale.41

The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.

• Strict limits are imposed on the possession and sale of non-powder guns within the jurisdiction (New York City)
• If the sale and possession of non-powder guns are permitted within the jurisdiction, the most comprehensive approach is to define all non-powder guns as firearms, so that restrictions on purchase and possession by minors, felons and other prohibited purchasers will apply (New Jersey, Rhode Island)
• Alternatively, with respect to high-power and large caliber non-powder guns only:

o all high-power and large caliber non-powder guns are defined as firearms, so that restrictions on purchase and possession by minors, felons and other prohibited persons will apply (Illinois, Michigan)

o all transfers of high-power and large caliber non-powder guns are required to be made through a licensed firearms dealer, and the dealer is required to report all transfers to law enforcement

o there is a registration mechanism for owners of high-power and large caliber non-powder guns

National Center for Injury Prevention and Control, U.S. Centers for Disease Control and Prevention, Web-based Injury Statistics Query and Reporting System (WISQARS) Nonfatal Injury 2001-2011, at http://webapp.cdc.gov/sasweb/ncipc/nfirates2001.html. [↩]

See 15 U.S.C. § 2052(a)(5)(E) (exempting firearms from the definition of “consumer product” subject to the authority of the Commission); Rev. Rul. 67-453, 1967-2 C.B. 378 (stating that air rifles and air pistols are not part of that exemption); CPSC Advisory Opinion No. 127; CPSC Safety Alert:BB Guns Can Kill, (Jan. 1, 2012), at http://www.cpsc.gov/CPSCPUB/PUBS/5089.pdf; CPSC Recall Alert: Air Rifles Recalled by Air Venturi Due to Ability to Fire With Safety Switch On (Apr. 18, 2012), at http://www.cpsc.gov/en/Recalls/2012/Air-Rifles-Recalled-by-Air-Venturi-Due-to-Ability-to-Fire-With-Safety-Switch-On/ (Recalling certain air rifles because “[t]he safety switch can be overcome by pulling the trigger with force, allowing the rifle to fire, resulting in a serious injury or death.”). [↩]

15 U.S.C. §§ 1274(c)(1), (2), and (e); 2064. The CPSC has taken at least one enforcement action against a manufacturer of a non-powder gun on the grounds that the gun created a “substantial product hazard” and “a substantial risk of injury” to children. See Daisy Manufacturing Co; Complaint, 66 Fed. Reg. 56,082 (Nov. 6, 2001) (alleging that non-powder guns manufactured by Daisy Manufacturing Co. present a substantial product hazard and a substantial risk of injury to children); Daisy Manufacturing Company Provisional Acceptance of Settlement Agreement and Order, 68 Fed. Reg. 68,876 (Dec. 10, 2003) (accepting on behalf of the Consumer Product Safety Commission a consent agreement that imposed a series of labeling requirements on non-powder guns). [↩]